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Employees Cannot Be Fired Merely For Being Homosexual Or Transgender: US Supreme Court [Read Judgment]

Ashok Kini
15 Jun 2020 3:40 PM GMT
Employees Cannot Be Fired Merely For Being Homosexual Or Transgender: US Supreme Court [Read Judgment]
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"An employer who fires an individual merely for being gay or transgender defies the law."
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The Supreme Court of The United States, in a landmark judgment delivered on Monday, held that the employees cannot be fired from the jobs merely because of their transgender and homosexual identity.

The Court, by a 6-3 majority, held that Civil Rights Act of 1964  prohibiting workplace discrimination on the basis of sex also protects employees based on their sexual orientation or gender identity.

The Civil Rights Act prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. In this case, which arises out of a petition filed by Bostock, a long-time employee allegedly fired by his employer simply for being homosexual or transgender, the issue considered by the Court was whether the Act prohibits discrimination on the ground of sexual orientation or gender identity.?

The Court observed that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex. The Court said that an individual's homosexuality or transgender status is not relevant to employment decisions.

Excerpts from the Majority Judgment (authored by Justice Neil McGill Gorsuch)
An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision

When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.

An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

An employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.

3 judges Dissent

Justice Alito, Thomas and Kavanaugh dissented. Justice Alito emphasizes that the concept of discrimination because of "sex" is different from discrimination because of "sexual orientation" or "gender identity." He opined:

"Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is."

Justice Kavanaugh, observed that the majority judgment is a transgression of the Constitution's separation of powers. He concluded his dissenting opinion as follows:

Notwithstanding my concern about the Court's transgression of the Constitution's separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgment.

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